Don't Share That Law! It's Copyrighted

Nathan Halverson writes "California claims copyright to its laws, and warns people not to share them. And that's not sitting right with Internet gadfly, and open-access hero, Carl Malamud. He has spent the last couple months scanning tens of thousands of pages containing city, county and state laws — think building codes, banking laws, etc. Malamud wants California to sue him, which is almost a given if the state wants to continue claiming copyright. He thinks a federal court will rule in his favor: It is illegal to copyright the law since people are required to know it. Malamud helped force the SEC to put corporate filings online in 1994, and did the same with the patent office. He got the Smithsonian to loosen its claim of copyright, CSPAN to stop forbidding people from sharing its videos, and most recently Oregon to quit claiming copyright on state laws." Malamud's talk at Google ("All the Government's Information") is also well worth watching.

California Strikes Again

Is this a joke? Laws are not "Science" or "useful Arts" as defined in the Constitution. They are practical communications between the government and its people. Since the government is both serves its people and is funded by its people, it cannot hold a copyright. This has been recognized at the Federal level for... oh... ever. ( 105. Subject matter of copyright: United States Government works [cornell.edu])

I'm all for state powers, but this is simply rediculous. Even if we assume a valid legal theory exists that allows states to hold copyrights over works created by public officers, laws themselves are still not considered works of art or science any more than a memo reminding my wife to get milk is considered copyrightable.

Of course, being a lawyer and/or lawmaker is a skilled trade. So the argument could be made that the text is the result of those skills. I still don't think it can be copyrighted, but let's say a judge disagrees with me. Well then, what of fair use? The people must have access to laws in order to obey them. Thus laws must be communicated in the open to all citizens under the fair use doctrine.

Under the 4 point balance test, the nature of the works (i.e. laws) is factual and thus not allowed copyright protection. (see: Time Inc. v. Bernard Geis Associates) The purpose of reproducing the laws is that it is information required by the public. The amount copied is irrelevant in this case, as the entirity of the law is required information for every citizen. Last but not least, the value of the law should only be in its improvement upon society, not a dollar value placed upon its reproduction. Coming back to the point the citizens PAID to have those laws created, it only follows that they should not be further charged to obtain copies of them.

Re:California Strikes Again

If he loses, it will be interesting to use "ignorance of the law" as a defense.

"I'm sorry, your honor, I didn't have enough money to know what laws I broke.

Re:California Strikes Again

We should copyright the copyright laws with billion dollar royalties for usage.

You could violate any copyrights you want, and when they try to cite the copyright laws, BAM!

Re:California Strikes Again

Maybe if we all pirate these laws it will reduce the financial incentive of these "artists" to create new works.

Re:California Strikes Again

Oh, man. Don't get our hopes up!

Re:California Strikes Again

Is this a joke?

Yes, parts of government increasingly look like a joke and not serious business, let alone representation of its citizens (and not: subjects).

But you basically already answered that by elaborating on the common sense you'd expect to be applied to matters like that, but didn't find.

Re:California Strikes Again

Part of the problem is that lobbyists for various trade groups have gotten California to adopt existing books of industry standards as state code. The law basically incorporates whatever is the latest industry standard book... which requires money to get. Same deal with things like medical terminology. There's a "standards group" which makes money off of licensing the billing codes and selling books of what the current billing codes are.

Re:California Strikes Again

The memo to get milk is MORE copyrightable than the laws.

The only way a law could be copyrighted is if they were works of art (poems or some such) and assigned to an individual or corporation (IE, not a government). And in that case if it belongs to an individual, how could it be a state law?

Re:California Strikes Again

Exactly. How do the creators of this portion of the law think their laws are not public domain? You know, 'government for the people by the people'; therefore any law created by the government is for and by the people and thus public domain.

We understand

Webster copyrighted "ridiculous" and you didn't have the money to pay for a license, so you created your own word.

The purpose of copyright is to encourage creativity. See, it works!

Playing With Fire

I wouldn't keep prodding Arnold like that.

Baffling

This view by certain US states that laws are copyrighted material is plexing to me. The laws are written by people, on materials, that are funded by the taxpayer. Therefore, laws are PUBLIC property.

And what point does copyrighting ones' laws serve? Is it about publication rights? If ignorance of the law is no excuse, then why is access not free to all.

Baffling.

Re:Baffling

The biggest issue comes down to things like building codes in small towns. They buy a model code from some company. See Veeck v. Southern Building Code Congress International, Inc. [cornell.edu]

Re:Baffling

This happens all the time. The judiciary doesn't want to deal with people - they want to deal with lawyers.... who get paid by the people.

I once had to fight a ticket in a small town traffic court. I requested a deposition via registered mail, and in my state, if the deposition isn't sent within 30 days the ticket becomes defective. It had been almost 2 months, and I still didn't have it.

As my court date approached, I took the issue up with the town clerk (who only worked a few hours, four days a week). She had never heard that they needed to send out the depositions before the court date (kind of hard to defend oneself without knowing the officer's account), but said she would take it up with the judge. In the meantime, I sent the court, again by registered mail, a notarized motion to dismiss on the grounds that the ticket was defective.

After another week of trying, the secretary finally caved and gave me the judge's work number (he owned the gas station in the town). He was unclear on the particulars of depositions, so he pushed my court date back and then he added:

"You know, you're not really following the proper procedures."

"OK. What are the proper procedures?"

"I can't tell you."

So, it comes as no surprise that government wants to hide laws from the people.

The 5th Circuit in Veeck

In Veeck v. Southern Building Code Congress International [google.com], the 5th Circuit held that laws are not copyrightable.

I didn't read the opinion but I'm pretty sure they had precedent.

I say let them copyright it

That would mean that "ignorance of the law" IS a valid excuse.

Re:I say let them copyright it

That would mean that "ignorance of the law" IS a valid excuse.

Don't be ridiculous; it means you'll have to pay an additional licensing fee to read the citation against you.

Re:I say let them copyright it

That would mean that "ignorance of the law" IS a valid excuse.

No, it's just an indication of which way we're going.

You've broken a law we can't tell you about, but you're guilty anyway. You're not allowed to tell someone else we've arrested you for the law, since the law precludes that. We can't give your lawyer a description of the law or the charges against you because the law precludes that.

Sadly, I think that's the PATRIOT act. :(

Cheers

Re:I say let them copyright it

No, it's just an indication of which way we're going.

You've broken a law we can't tell you about, but you're guilty anyway. You're not allowed to tell someone else we've arrested you for the law, since the law precludes that. We can't give your lawyer a description of the law or the charges against you because the law precludes that.

Sadly, I think that's the PATRIOT act. :(

Cheers

It's not the PATRIOT act because the PATRIOT act is published. But there is proof of such law in Gilmore v. Gonzales. [wikipedia.org]

I'm generally against more laws, but if there ever was a constitutional amendment I could get behind, it's that all laws should be available to the public without charge.

Re:I say let them copyright it

Out of curiosity, can anyone point me to a good history of when this became the standard?

Go back to Hammurabi [wikipedia.org]. As a king of Babylon, he felt that ignorance of the law was not an excuse for not following it. Thus he constructed massive stone tablets in the center of his cities that displayed the law for all to see, so that no one could argue that they were ignorant of the law. This was the basis for the doctrine of "ignorance of the law is not a defense."

It didn't take long for the complexity of laws to outstrip the ability of governments to easily publish them in public. Thus Hammurabi's idea of a public display was replaced by the doctrine of public access to laws. Citizens in most countries are expected to keep informed of the latest laws by requesting copies from their government. Traditionally, the governments provided these laws at no charge, or merely for the cost of publication.

Lock him up!

Carl Malamud is aiding the terrists! If the laws are freely available to be known by the public, the terrists will find out and obey them to avoid being caught!

Legal Publishers.

Until quite recently many states (Pennsylvania being the last) did not post their laws online at all or make them available to the public for free. In many cases the only way to get access to the actual laws was to purchase a copy from the state's legal publisher or look them up in a legal library, (which exists on ever street corner). This is as true for statutes of the type that Malamud is focusing on as caselaw which is an essential facet of law in the U.S. and other Common Law countries.

Efforts to change this have routinely been fought by legal publishers who hold lucrative monopolies on the publication of laws and their dissemination. There also exists a generational gap in many cases with a generation accustomed to having the law on paper not really understanding why one would look online.

So ironically what Malamud is doing is not "fighting for the norm" of freely accessible laws but fighting for something new. While many people are fond of the cant "ignorance of the law is no excuse", for most of recent U.S. history laws have been hidden.

Good luck to him.

So Officer What Did I Do?

I am sorry Sir I cannot tell you that would put me in violation of copyright. However, I can sell you a copy of the Traffic Act and then point out the relivent section. So Sir will that be cash or charge?

Re:Not illegal

I'd ask this question: who owns the copyrights? I'd say it's the taxpayers .

Re:Wasting his time?

A douchebag for "civil disobedience" and standing up against a ridiculous law? I guess Rosa Parks (and all the others that did similar, before and after) was a douchebag who should have not coaxed the state into throwing her into prison wasting taxpayer money...?

He's doing a very important thing because by challenging the law he's effectively testing it and him winning means other people won't be intimidated by this bullshit--you say he should avoid breaking this obviously bogus, incredibly idiotic law, but then, you're just saying that people should bend over backwards to accommodate the state's stupidity. Thus the only time the law would be tested would be, ironically, in a case of ignorance of the law, in a case where the law is copyrighted. Heh!